Citation Nr: 1020446
Decision Date: 06/03/10 Archive Date: 06/10/10
DOCKET NO. 05-17 677A ) DATE
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)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to service connection for atherosclerotic heart
disease and coronary artery disease, claimed as secondary to
or aggravated by service-connected allergic rhinitis and
tonsillitis, status post tonsillectomy, to include as due to
or aggravated by exposure to herbicides.
REPRESENTATION
Appellant represented by: Kathy A. Lieberman, Attorney
at Law
ATTORNEY FOR THE BOARD
Tresa M. Schlecht, Counsel
INTRODUCTION
The Veteran served on active duty from May 1967 to April
1969, including service in Germany, but not including service
in Vietnam.
This appeal initially came before the Board of Veterans'
Appeals (Board) on appeal from a May 2005 rating decision of
the Department of Veterans affairs (VA) Regional Office (RO)
in San Juan, the Commonwealth of Puerto Rico. After the
Board denied the claim in November 2007, the Veteran appealed
that decision to the United States Court of Appeals for
Veterans Claims (Court). The parties submitted a Joint
Motion to Remand in December 2008 and the Court issued an
Order which incorporated the Joint Motion and vacated the
portion of the Board's 2007 decision which denied the claim
listed on the title page of this decision, and remanded the
claim to the Board.
The appeal is REMANDED to the Department of Veterans Affairs
Regional Office. VA will notify the appellant if further
action is required.
REMAND
The Joint Motion requires the Board to further address the
Veteran's lay statements that he was exposed to herbicides
during his active service, including while stationed in
Germany. In order to address the Veteran's lay statements
that he was exposed to herbicides, the Veteran's personnel
file should be obtained, and the list of each location at
which the Veteran was stationed should be forwarded to the
U.S. Army and Joint Services Records Research Center (JSRRC).
JSRRC should be asked to determine whether there is any
official record that herbicides were used or stored at any
location at which the Veteran was stationed while he was
there.
The Joint Motion requires the Board to address the Veteran's
contention that his exposure to herbicides caused or
aggravated atherosclerotic heart disease and coronary artery
disease. As noted above, the Veteran did not service in
Vietnam; his overseas service was in Germany. If any
government record confirms the Veteran's lay testimony that
herbicides were used or stored at any location where the
Veteran was stationed, including in Germany, then medical
opinion as to the possible effects of the Veteran's exposure
to herbicides must be obtained.
The Veteran also contends that medications used to treat
service-connected allergic rhinitis and service-connected
tonsillitis caused or aggravated a cardiovascular disorder.
In particular, the Veteran contended, in a June 2005
statement, that the problems he had with his respiratory
system resulted in asthma and open heart surgery. In a May
2005 statement, the Veteran contended that his "heart
condition" was secondary to or aggravated by his service-
connected respiratory condition and aggravated by the
medications required to treat service-connected respiratory
disability. The clinical records of the Veteran's treatment
for his service-connected disabilities, and evidence about
medications used to treat those disabilities, must be
developed. Then, VA examination should be conducted.
Accordingly, the case is REMANDED for the following action:
1. Request the Veteran's complete
service administrative and personnel
records from the National Personnel
Records Center, including records which
establish where the Veteran was
stationed.
2. Provide the list of each location
at which the Veteran was stationed
during service to the U.S. Army and
Joint Services Records Research Center
(JSRRC). Ask JSRRC to provide
documents which reflect whether
herbicides were used or stored at the
locations to which the Veteran was
assigned, including in Germany. If
JSRRC directs that information be
requested from a different federal
agency or resource, contact such
source.
3. Obtain the Veteran's VA clinical
records, including records of
medications prescribed by VA. If the
Veteran had VA hospitalizations, obtain
inpatient records, with complete
admission history and physical
examination records, physician notes,
and records of medications administered
or prescribed.
4. Afford the Veteran an opportunity
to identify or submit non-VA clinical
records which show treatment for a
service-connected disability or list
medications required to treat a
service-connected disability. In
particular, the Veteran should identify
the facility at which a tonsillectomy
was performed in 1975 and the facility
at which 2004 cardiovascular surgery
was performed. Obtain inpatient
records, including complete admission
history and physical examination
records, all physician notes, and all
records of medications administered or
prescribed, if available.
5. The Veteran should identify or submit
pharmacy records, or any alternative records,
such as employment medical records, records
from insurance companies, or the like, which
might disclose treatment of a service-
connected disability, medications used to
treat a service-connected disability, or
information about the onset or etiology of for
atherosclerotic heart disease or coronary
artery disease.
After all VA and private clinical records have
been obtained, and all development directed
above has been completed, the Veteran should
be afforded VA examination. The RO should
provide the examiner with a list of the
Veteran's service-connected disability. The
claims file must be provided to each examiner.
The examiner should conduct any necessary
diagnostic testing. The examiner should
discuss the Veteran's service treatment
records, post-service clinical records
following the Veteran's April 1969 service
separation, and the records of medications
used to treat the Veteran's service-connected
disabilities.
Then, the examiner should answer the following
questions:
(i) Is it at least as likely as not (is there
at least a 50 percent probability) or, is it
unlikely, that the Veteran has a
cardiovascular disorder which was incurred or
manifested in service?
(ii) Is it at least as likely as not (is
there at least a 50 percent probability) or,
is it unlikely, that the Veteran has a current
cardiovascular disorder which is due to or
results from a service-connected disability?
(iii) Is it at least as likely as not (is
there at least a 50 percent probability) or,
is it unlikely, that a service-connected
disability, or medication used to treat a
service-connected disability, accelerated the
onset of a current cardiovascular disorder, or
that a service-connected disability, or
medication used to treat a service-connected
disability, aggravates, that is, increases the
severity of, a current cardiovascular
disorder?
(iv) If, but only if, there is official
verification that the Veteran was exposed to
herbicides, then the examiner should address
this question:
Is it at least as likely as not (is there at
least a 50 percent probability) or, is it
unlikely, that the Veteran has a current
cardiovascular disorder which is a result of
the Veteran's exposure to herbicides in
service? If exposure to herbicides did not
cause a current cardiovascular disorder, is it
as likely as not that exposure to herbicides
accelerated onset of a cardiovascular disorder
or that residuals of exposure to herbicides
aggravate a cardiovascular disorder?
The examiner(s) should be advised that the
term "at least as likely as not" does not mean
merely within the realm of medical
possibility, but rather that the weight of
medical evidence both for and against a
conclusion is so evenly divided that it is as
medically sound to find in favor of causation
as it is to find against it.
If an opinion cannot be provided without
resort to pure speculation, the examiner
explain why speculation would be required in
this case (e.g., if the requested
determination is beyond the scope of current
medical knowledge, actual causation cannot be
selected from multiple potential causes, etc).
The examiner should identify the relevant
testing, specialist's opinion, or other
information needed to provide the requested
opinion.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).